Bondurant v. Mills

• Decision Date: 03 May 1927
• Docket Number: No. 19775.,19775.
• Parties: BONDURANT v. MILLS et al.
• Court: Missouri Court of Appeals

294 S.W. 742

BONDURANT v. MILLS et al.

No. 19775.

St. Louis Court of Appeals. Missouri.

May 3, 1927.

Rehearing Denied June 7, 1927.

Appeal from Circuit Court, Scotland County; N. M. Pettingill, Judge.

"Not to be officially published."

Action instituted in the circuit court of Schuyler county by J. D. Bondurant, Jr., against the Raven Coal Company, Paul Mayo, and others, in which Sara M. Mills, having been made party defendant on her application, filed a cross-action. The action was transferred to the circuit court of Scotland county, and plaintiff dismissed as to the defendant first named. Judgment for the second named defendant, and for the defendant Sara M. Mills against plaintiff on her cross-action, and the plaintiff appeals. Affirmed.

J. E. Rieger, of Kirksville, W. F. Frank, of Kansas City, and S. H. Ellison, of Kirksville, for appellant.

Higbee & Mills, J. M. Campbell, and M. D. Campbell, all of Kirksville for respondent.

BENNICK, C.

This is a suit in equity, all of filed by plaintiff in the circuit court of Schuyler county, Mo., naming the Raven Coal Company, Milton S. Mills, Charles F. Carter, and Paul Mayo as defendants. It appears that no service was had upon Milton S. Mills and Charles F. Carter.

The petition alleged that the individual defendants above named had associated themselves together in the promotion of a mining scheme, culminating in the incorporation of the Raven Coal Company, with an authorized capital stock of $120,000, divided into 1,200 shares, of, a par value of $100 each; that the articles of agreement recited that such capital stock had been paid in lawful money of the United States, in the sum of $400, and in property of the value of $119,600; that the aforesaid promoters and incorporators had been named as the officers and directors of said Raven Coal Company; that 550 shares of the stock in said corporation had been placed in the treasury thereof and became treasury stock; that the individual defendants had unlawfully sold plaintiff 50 shares of said stock for the price of $5,000, for which the sum of $1,000 had been paid by him in cash, and the remaining $4,000 evidenced by a certain promissory note, which by mutual agreement had been made payable to respondent Sara M. Mills; that plaintiff afterwards paid the sum of $1,000 on the principal and $280 interest on said note; that the representations made by said incorporators and promoters to plaintiff in order to induce him to purchase said stock were false and untrue and so known to defendants, but not known to plaintiff, who had relied upon such false representations; that the said promissory note, having been obtained by false, fraudulent, and untrue representations made to plaintiff by said promoters, was without consideration and void, and was executed in violation of section 10155, R. S. 1919. The prayer of the petition was that the subscription or agreement of plaintiff to purchase said stock, together with the promissory note executed by him, be declared null and void and canceled, and that he recover of defendants the sum of $2,280, together with interest thereon.

During the same term, respondent Sara M. Mills filed in court her application to be made a party defendant, reciting therein that she was the person named in the petition as the payee in the promissory note, and was the owner and holder thereof; that on July 7, 1920, plaintiff had executed and delivered said note to her, and at the same time had pledged to her 50 shares of the stock of the Raven Coal Company, of which he was the owner, as collateral security for the payment of said note; that she desired to defend against plaintiff's cause of action; and that by making her a party defendant to said suit a multiplicity of suits could be avoided and the issues between her and plaintiff determined.

So far as the record discloses, plaintiff made no objection to respondent's said application, and the court on the same day sustained the same, to which action the record discloses that no exception was taken or saved by plaintiff. Thereupon respondent filed her answer and cross-petition, which, after denying generally the allegations of plaintiff's petition, affirmatively averred the several facts set out in her above application, and concluded with a prayer for judgment for the amount due upon said note, and that her lien upon the pledged shares of stock in the Raven Coal Company be foreclosed and sold and the Proceeds applied upon the payment of the indebtedness of plaintiff to her.

Again the record is barren of exceptions taken or saved by plaintiff to the action of the court in permitting the answer and cross-petition of respondent to be filed. Thereafter, and on the same day, plaintiff filed an application for a change of venue, whereupon the cause was duly transferred to the circuit court of Scotland county, Mo., wherein respondent appeared and obtained leave of court to file an amended answer and cross-petition, to which no objection was made by plaintiff. The allegations of such amended answer and cross-petition, so far as the purposes of this appeal are concerned, were not materially different from those contained in respondent's original pleadings.

The cause was thereupon set down for trial for December 1, 1925, but subsequently continued until December 23, 1925, upon which latter date plaintiff requested the court to declare a recess until the afternoon of such day to afford him an opportunity to prepare an amended petition. This request was granted. When the court reconvened on the afternoon of said day, plaintiff filed a motion to dismiss and discharge respondent as a defendant in the cause, alleging as his reasons that the order permitting her to become a defendant had been made ex parte; that she was not a proper or necessary party for the determination of the issues made by his petition; and that she had no interest in the subject-matter of the suit and would not have been affected by any judgment which could have been rendered therein. This motion was overruled, to which action of the court plaintiff at the time duly excepted.

Thereupon plaintiff filed an answer to respondent's petition, pleading therein substantially the same matters as had been set out in his previous motion to...